Texas House Bill 321 will make it illegal for employers to consider important and relevant information about an individual’s past criminal conduct.

HB 321 would prohibit using a completed deferred adjudication sentence in “denying housing,  employment, or a professional license to an individual who is  otherwise entitled to or qualified for the housing, employment, or  license.”

Deferred adjudication is a legal process where a defendant enters a plea of guilty or no contest to a criminal offense but the court delays entering a conviction against the defendant, instead putting them on probation for a few months or as long as a decade. That probation often comes with additional conditions such as community service hours, ongoing drug testing, anger management counseling, or paying restitution to the victim of the offense. Once the defendant has satisfied the probationary conditions, the court can dismiss the case rather than enter a conviction.

In Texas, deferred adjudication is available to defendants for a wide variety of felonies. In fact, a defendant facing felony charges in Texas is more likely to receive deferred adjudication than a misdemeanor defendant. Additionally, felonies for which deferred adjudication is not statutorily available are often pled down to lesser-offenses for which deferred adjudication is available.

According to the Texas Office of Court Administration’s Annual Statistical Report for the Texas Judiciary, of the fiscal year 2012 cases that did not end in outright dismissals or acquittals (findings of “not guilty”):

  • 30% of misdemeanors resulted in deferred adjudication (76,116 cases)  and
  • 45% of felonies resulted in deferred adjudication (158,803 cases).

Overall, 35% of the fiscal year 2012 misdemeanor and felony cases in which the individual admitted responsibility for or was found guilty of the offense alleged ended in deferred adjudication.

For first-time offenders, deferred adjudication is a valuable opportunity to straighten out their lives and avoid the soul-hardening effects of jail. Also, many courts have a giant backlog and deferred adjudication programs are a faster, less-expensive way to expedite case closure. It is also significantly less expensive for tax payers than incarcerating someone in a county or state jail.

There is a misconception that employers cannot or should not consider non-conviction information when making hiring decisions. However, there are no prohibitions against the reasonable use of non-conviction information, including cases where deferred adjudication was completed.  Even the Equal Employment Opportunity Commission recognizes that employers only have to find that it is reasonable to believe that the person engaged in the conduct alleged in order to include it in their employment evaluation.

As with convictions, when considering cases that ended in deferred adjudication employers should consider the severity of the offense, the time that has passed, and the relationship of the offense to the position for which the person is being considered.

HB 321 takes away the employer’s opportunity to evaluate the individual’s past conduct in light of the risks associated with the position for which they are being considered. It will require employers to hire people that they would otherwise deem unsafe and unqualified for certain positions, threatening public safety, workplace safety, and the employers’ assets and reputation.

Rehabilitated former offenders already have the opportunity to petition the court for an order of non-disclosure in as few as two years following their release from community supervision for a misdemeanor offense or five years for a felony offense. If a judge is unwilling to seal the offender’s history from public access, it is unreasonable for the legislature to expect employers to ignore the same information when making a hiring decision.

Employers should not be limited from making fully-informed decisions based upon legitimate business necessities. If you agree, please contact your legislators and explain your concerns with HB 321.

Update: The House Corrections Committee heard testimony on HB 321 today. It is clear that the bill’s author and some of the committee members don’t understand all of the issues surrounding deferred adjudication. You can view it on the Legislature’s website. Skip forward to about the 24:00 minute mark to hear the testimony on this bill.